Tort and Catastrophic Loss

Friendship Enterprises, Inc., d/b/a Elevation Chophouse v. Hasty, (Ga. Ct. App.). The Georgia Court of Appeals recently granted a petition for interlocutory review filed by Atlanta Partners Wayne Melnick, Michael Freed, and Wes Jackson, of the trial court’s denial of a motion for summary judgment. The appeal involves important issues bearing on respondeat superior liability and its interplay with the premises liability standard when an employee’s allegedly tortious actions were outside the course and scope of his employment.

Deaton Holdings, Inc. v. Reid, Case No. A23A0005 (Ga. Ct. App.). The Court of Appeals of Georgia recently granted a petition for interlocutory review filed by Atlanta Attorneys Wayne Melnick, Michael Freed, and Eric Retter in case presenting an issue of first impression. That issue is whether the defendant in a single defendant tort case can require the joinder of other potentially responsible nonparties. The appeal was necessitated by the Georgia Supreme Court’s holding in Alston & Bird v. Hatcher, that nonparty apportionment of fault is unavailable in single-defendant cases. As a result, appellants argue, potentially responsible nonparties are necessary and indispensable under Georgia law, and must be joined as defendants. The Court of Appeals will hear oral argument in December 2022.

Kevin Kenneally and William Gildea in FMG’s Boston office, won a post-trial motion for JNOV to overturn a $750,000 judgment awarded in favor of the Estate of a nursing home resident who allegedly died as a result of “neglect.” The nursing home contended the resident suffered a witnessed hemorrhagic stroke. The post-trial decision found that several evidence errors would have required a new trial, but since the plaintiff lacked standing to proceed with the claim, judgment was entered for FMG’s client, and the case was dismissed.
The claimant’s attorneys initially pursued wrongful death damages along with conscious pain and suffering and punitive damages claims. On the eve of trial, the lawyers waived rights to wrongful death claims and the jury awarded damages only for “conscious pain and suffering” (punitive damages were rejected by the jury). As argued throughout, the Estate had no rights to recover conscious pain and suffering damages because the right to litigate over such an asset of the estate was lost by the lawyers’ failure to timely probate the estate. FMG renewed this argument post-verdict and the Superior Court agreed there was no subject jurisdiction over the only claim on which the Estate prevailed, which required entry of judgment against plaintiff.

FMG Attorneys Marc Bardack and Wes Jackson obtained a defense verdict for client homeowners sued by their downhill neighbors for allegedly creating and maintaining a continuing nuisance and trespass due to excess surface water runoff from our clients’ property onto the plaintiffs’ property. The jury found our clients not liable, while allocating fault to the neighborhood homeowners’ association, the builders of the parties’ homes, and to one of the plaintiffs while awarding no damages.

An Eastern District of Pennsylvania judge has ruled that Tyson Foods, Inc. (“Tyson”) is immune from liability for claims asserted by the family of a supervisor at a Philadelphia meatpacking plant who died of complications from COVID-19. The claims were dismissed as the Pennsylvania Workers’ Compensation Act (“PWCA”) is the exclusive remedy for job-related injuries. Although the Plaintiff argued only one entity could be immune under the PWCA, the court disagreed finding that Tyson, as a parent company exercising workplace control, was also immune from liability. Plaintiff alleged the meatpacking plant at which her deceased husband worked, was “owned, supervised, and controlled” by Tyson although he had been employed by Original Philly Holdings. She further claimed that Tyson’s COVID-19 safety measures were inadequate resulting in her husband’s exposure to COVID-19 and related death. She claimed Tyson could not be considered an employer under the PWCA because the Act only allows for one entity to be deemed an “employer” under the Act.

The Court rejected Plaintiff’s contention noting that Pennsylvania courts have explicitly held that an employee may have more than one employer for purposes of the Act. The critical issue for purposes of immunity is whether the entity has the right to control and direct the method and manner of work employees perform. Plaintiff’s allegations demonstrated that Tyson met the definition of employer for purposes of the Act. Specifically, the Plaintiff alleged Tyson “owned, operated, managed, and otherwise controlled” the meatpacking plant and “sell[s] meat products under the brand name Original Philly Cheesesteak.” The Plaintiff further contended that it was Tyson’s own failure to implement adequate safety precautions which resulted in her husband’s illness, and ultimately, death. Under the circumstances, the exclusivity provision of the Act mandated dismissal with prejudice of the tort claims asserted against Tyson.

Paul Piantino and the Aviation Practice Team secured a big win on summary judgment in New York Supreme Court in Erie County this past November. The case centers around the “duty to warn” and liability with respect to snow removal, a topic FMG has a great deal of expertise in.

Plaintiff was an employee of a private aircraft charter which leased certain sectors from Defendant Airport as part of its business activities. During a snowstorm at the Airport, Plaintiff was allegedly severely injured when she slipped and fell on ice. Plaintiff alleged that she was assisting in the removal of an airplane that had gone off the runway due to snowy and icy conditions. The aircraft left the runway on to a grassy area and had to be towed out. Plaintiff herself was assisting in towing the aircraft out at the time of her injury.

Plaintiff maintained that Defendant acted negligently in creating and allowing a dangerous condition and failing to display proper warning notices so that the pilot would be aware of the end of the runway in snowy conditions. In addition, Plaintiff brought a New York Labor law claim arguing Defendant had a general obligation to protect the health and safety of all employees operating in the area of the Airport. FMG represented the Airport Authority who operated the Airport.

Defendant was able to demonstrate that it was not required to erect a warning sign and the lack thereof was not a significant factor in causing the injuries that resulted to Plaintiff. Additionally, Defendant relied on the “snow in progress” doctrine. Specifically, while a storm was in progress, Defendant had no obligation to plow, sand or otherwise clean the area. Defendant did, however, choose to plow the area to make it possible for the grounded plane to be removed. As such, Defendant Airport had a duty to “not exacerbate or create a dangerous condition.” (Wheeler, 31 A.D.3d at 993) In the Court’s view, Defendant did not- they simply plowed the area to assist in the plane’s removal.

Additionally, it was ascertained that Defendant had neither actual nor constructive notice of the alleged icy conditions as this condition was allegedly present for less than one hour prior to the incident, and further, no complaints were received during that time. Lastly, it was determined that Plaintiff’s labor law claim was meritless because Plaintiff was not considered an employee of Defendant, and as such, Defendant did not have a duty to warn Plaintiff of “potentially dangerous machinery, equipment, and devices” (N.Y. Lab Law §200(2) (McKinney))

This is a notable case under New York law that touches on several vital and recurrent themes in tort law, especially as we head into the winter season. This case provides guidance when defending snow removal and “duty to warn” cases for FMG’s Tort and Catastrophic Loss Practice Section.

If you would like a copy of the Supreme Court’s opinion, please contact Paul Piantino at [email protected] or any attorney at the Newark office.

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